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KRAVITZ AND PURICELLI

BY: Brian M. Puricelli. Esquire

PA. Attorney ID No. 61933

691 Washington Crossing Road

Newtown, Pa. 18940

(215) 504-8115

____________________________________________________________________________________

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN MULHOLLAND : NO. 05-5233

Plaintiff :

vs :

:

CITY OF PHILADELPHIA, AND :

ALICE MULVEY AND KEVIN DWYER :

Defendants :

Sued individually,

held liable jointly and severally : JURY TRIAL DEMANDED

FIRST AMENDED COMPLAINT

I. INTRODUCTION

1. This is a civil action brought by Philadelphia Police Sergeant John Mulholland (hereafter

Plaintiff) who under 42 U.S.C. Section 2000(e) (Title VII) and 42 U.S.C. §1983, (§1981 et seq.)

and the United States Constitution, Commonwealth of Pennsylvania Constitution, and the

statutory provisions of the United States and Commonwealth of Pennsylvania, including 43 C.S.

§951 et seq., §955 (The Pennsylvania Human relations Act) seeks compensatory damages,

punitive damages and other related relief, including equitable relief, attorney fees and litigation

costs, for the deprivations of his constitutional, statutory and civil rights, attendant to his

employment as a Police Officer with the City of Philadelphia, by the Defendants who were acting

under color of state law and/or aiding and abetting the employer’s policy, practice or custom to

discriminate in the terms and conditions of employment because of gender, religion and protected

activities, such as the First Amendment rights to free speech rights, e.g. oppose illegal

employment discrimination and discrimination because of religion and gender; practicing a well

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established and recognized religion; and the Fourteenth Amendment right to equal protection and

substantive due process.

II. JURISDICTION

2. Jurisdiction is founded on 28 U.S.C. §1343 (3) and (4), 28 U.S.C §1331 (Federal

Question) and 42 U.S.C §1983, et seq., because this action is to redress the deprivation under

color of any State law, statue, ordinance, regulation or immunity secured by the Constitution of

the United States of America providing for equal rights of all persons within the United States and

to recover damages under any Act of Congress providing for the protection of civil rights.

Supplemental jurisdiction is invoked to resolve the state constitutional and statutory claims.

III. VENUE

3. Venue is proper herein as the cause of action arose in the city of Philadelphia,

Pennsylvania. Pursuant to Local Civil Rule 5.1.1 regarding pleading claims for unliquidated

damages, as specifically stated herein, plaintiff seeks compensatory and punitive damages in

excess of the amount which is within the level of arbitration and as such this matter is not subject

to arbitration under Local Civil Rule 53.2.

IV. PARTIES

4. John Mulholland (referred herein and after as Plaintiff) is an employee of the City of

Philadelphia, and he currently holds and held for all times related to the claims the rank of

sergeant with the Philadelphia Police Department. For the times relevant hereto Plaintiff is a

person as intended by 42 U.S.C §1983, and an employee or member of a protected class as

intended by Title VII , the Human Relations Act, and analysis for a First Amendment religious and

free speech deprivation claim under 42 U.S.C. §1983. Plaintiff for all times relevant this Action

was assigned to the Forensic Lab Unit for the City of Philadelphia Police Department and Plaintiff

was under the supervision of Defendant Alice Mulvey, who is an inspector and in a policy making

position for the City of Philadelphia and its police department.

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5. The City of Philadelphia (referred herein and after as“Defendant City”) is a City of the

First Class of the Commonwealth of Pennsylvania. The City is a “Person”as intended by 42

U.S.C. §1983 and for all times relevant hereto the City operated under color of state law and/or a

policy practice and custom, of which one that relates to this cause of action is to deprive persons

of their civil rights; in that, the policy was by the City acquiescing to the acts of its employees

such as Defendant Alice Mulvey, who is a high ranking policy making employee, and thus adopt

Mulvey’sconduct as its own to create a policy, practice or custom to discriminate and deprive civil

rights.

6. The City atalltimesrelatedtoPlaintiff’sActionknew or should have known of the codefendants’actsandkneworshouldhaveknowtheactswoulddeprivepersonoftheircivilrights,

but the City failed to take prompt and appropriate action or to properly train or supervise its

employees, and Mulvey, which failure caused the Plaintiff and others to be deprived of federal

and state rights, privileges and immunities as secured by law, rule or regulation.

7. Alice Mulvey (Defendant Mulvey) is a white female Christian; she is also a “Person”as

intended by 42 U.S.C. 1983. Defendant Mulvey hold the rank of Inspector with the Philadelphia

Police Department and is in management, which management position is a chief policy maker

position for the City of Philadelphia Police Department, and Mulvey supervises Defendant Dwyer,

PlaintiffandtheForensics’sUnitfortheCityofPhiladelphiaanditsPoliceDepartment.

8. Kevin Dwyer is a natural person, police officer, employee of the City of Philadelphia and

personal friend of and subordinate to City employee to defendant Mulvey. Defendant Dwyer is a

“Person”asintendedby42U.S.C.§1983, who under color of state law agreed, aided and

abetted and conspired with Defendant Mulvey to intimidate witness who were to provide

testimonywiththeEEOCandincourtagainstforMulvey’sforherillegalemploymentpractices,

discriminatory act, and retaliation against Plaintiff for his exercising his Muslim faith and free

speech activity.

9.

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V. MATERIAL FACTS AND ALLEGATIONS

10. Plaintiff incorporated all preceding paragraphs hereto and if repeated verbatim.

11. From December 27, 1993 to date, Plaintiff has been successfully employed by the City

of Philadelphia as a Police Officer; he has received satisfactory evaluations for his performance,

and was held in the highest regard by his peers and supervisors. Plaintiff holds the rank of

sergeant since December 16, 1998.

12. On or around March 2004 Plaintiff was off duty and engaged in the practice of his

religion; he is a muslin, and on said day he was wearing religious wear; to wit, a Hatta.

13. On or about March 2004 Defendant Mulvey, who then and now holds the rank of

Inspector, was on duty and saw Plaintiff wearing the Hatta. Defendant Mulvey told Plaintiff to

“taketheragoffyourhead”.

14. Since Defendant Mulvey saw Plaintiff practicing his religion and wearing the Hatta, she

has engaged in a course of conduct to discriminate against Plaintiff for practicing the muslin

religion, for which Plaintiff within 300 days of the acts by Mulvey filed a charge of gender and

religious discrimination with the Equal Employment Opportunity Commission

15. Plaintiff alleged to the EEOC and Pennsylvania Human Relations Commissions, and

alleges hereto, that because of his gender and religion, and making a Charge of discrimination to

the EEOC and PAHRC:

A) Mulvey forbid Plaintiff from being picked up at the train station and to be driven to the

District for work; however prior to Plaintiff being seen practicing his religion and wearing

the Hatta, or making a charge of discrimination, Plaintiff was permitted to be picked up at

the train station by an on duty officer and to be driven to the District for work;

B) Defendant Mulvey has ordered Plaintiff not to use his lap top computer for or during work;

however, prior to Plaintiff being seen practicing his religion, wearing the Hatta and making

the EEOC charge, the Plaintiff was permitted to use a personal lap top computer. Further,

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he as a male is not allowed to use the lap top; however, female employees in the District

were and continue to be allowed;

C) Mulvey has direct no studying for promotional exams by Plaintiff while working at the

District; however, prior to Plaintiff being seen practicing his religion, wearing the Hatta, and

making the EEOC discrimination charge, which was cross filed with the PAHRC, the

Plaintiff was permitted to study for promotions at the district. Further, females are permitted

t study on duty for promotional examines but not the Plaintiff.

D) Mulveyhas“recommended”Plaintiff’stransfer“toavoidseriousdiscipline”byher;however

prior to Plaintiff being seen practicing his religion, wearing the Hatta, and making the

charge of discrimination, Mulvey had no internal Police Department investigation for

discipline initiated against the Plaintiff and had not desired to see Plaintiff transferred;

E) Mulvey has not approved insubordination charges that were filed by Plaintiff under the

Department disciplinary system; however, prior to Plaintiff being seen practicing his

religion, wearing the Hatta, and making the EEOC/PAHRC charge of discrimination, the

Plaintiff was able to discipline subordinate for insubordination. Further, Mulvey would not

allow insubordination charges brought against a female officer by Plaintiff.

16. As a result of Defendant Mulvey’sdiscrimination, acts as afore mentioned, the Plaintiff

filed a Gender and Religion Discrimination Charge with the Equal Employment Opportunity

Commissions and cross filed the Charge with the Pennsylvania Human Relation Commissions.

The charge was filed within 300 days of the date of discrimination.

17. Following the filing of the Charge and notice of the Charge on the Defendants, the

Plaintiff continued to suffered discrimination and retaliation for opposing, reporting and foiling the

Charge of discrimination, by the City, Mulvey and Dwyer.

18. Plaintiff is a bona fide member of a well recognized and established religion; to wit

Muslim faith, and a Muslim tenant provides that a Hatta be worn.

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19. Plaintiff is also a bona fide member of a well recognized and established class; to wit, a

male, person who engages in First Amendment activities, such as free speech and religion.

20. Plaintiff has been treated less favorably than females and other employees of other

faiths, such as Christians, or people who are notmembersoftheaforementioned“class”;and,it

has been Defendants Mulvey and the City who have treated the Plaintiff differently; although he is

similarly situated as the others.

21. On July 22, 2005 a Right-to-Sue letter was issued by the Department of Justice (See

Exhibit A) on Plaintiff discrimination Charge, Plaintiff uponreceivingthe“Right-to-Sue”letterfiled

the instant civil action within 90 days of the date the Right-to-Sue letter was received. See Exhibit

“A”attachedto the original complaint, which exhibit is hereto incorporated in its entirety from the

recordasExhibit“A”tothisAmendedComplaint.

22. AsaresultofthePlaintiff’schargeofdiscriminationto the EEOC, the EEOC requested

the Plaintiff provide the names of witness to support the Charge, which request was fulfilled and

the witness names were provided. Since then Mulvey has used her position as an Inspector, and

acted under color of law and in concert and agreement by words or acts with police officer Kevin

Dwyer, to obstruct justice, prevent Plaintiff from prosecuting his discrimination claim, and to

intimated and coerce the Plaintiff and his witnesses. In that Mulvey made a threat against the

Plaintiff to discipline him and the witnesses that aided the plaintiff. Mulvey stated she would

transfer the witnesses if they cooperated, aided, and/or testified about the Charge and/or against

her and the City on the Plaintiff’sallegationsandChargeofdiscrimination. Defendant Mulvey also

directed and sent Defendant Dwyer to rely a threat to the witnesses that they would be

transferred to a District from the Forensic Unit if the aided the Plaintiff. Dwyer told the witness that

”Youknow,ifanyofyougodownandtestifyonSgtMulholand’sbehalfyou’llbesentbacktoa

District”.

23. Plaintiff after hearing the threat confronted Mulvey about the threat; thereafter, the

MulveyandDwyerusedtheForensic’Unit’sdigitalsecuritysurveillancecamerasystemto

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monitor the employee witnesses; this use however is not a permitted use for the system under

City of Philadelphia Police Department policy.

24. As a direct and proximate result of the actions aforementioned described, the plaintiff

has lost employment opportunities, wages and benefits (property) that he is entitled to; he lost

privileges and the right to a good name, his reputation in the police community, his liberty and the

loss was imposed without due process of law. Plaintiff was placed under considerable distress,

humiliation and embarrassment that was extreme and outrageous, conduct that shocks the

conscious, and is beyond the bounds society is willing to accept for employers and members of

the Philadelphia Police Department.

25. Asadirectandproximateresultoftheaforementionedactions,thePlaintiff’sreputation

and his career within the Philadelphia Police Department has been adversely affected. Since

such action by the DefendantsthePlaintiff’speersandsupervisorsnowviewhimasaperson

who has discipline or supervision problems, which thus harms Plaintiffs promotional and transfer

opportunities.

26. As a result of the aforesaid actions, and other culpable acts of the defendants, Plaintiff

suffered, and will continue to suffer, economic loss, including lost wages, benefits, and other work

related emoluments, as well as other damages including those described in this complaint.

27. Upon information and belief the City of Philadelphia and the Philadelphia Police

Department do not have adequate programs and/or policies or supervision to prevent

discrimination, retaliation and illegal employment practices, by its employees, and the Defendant

City by policy, practice and custom ignore claims of discriminatory conduct by officers, disparately

disciplines officers in order to chill the exercise of constitutional rights by its employees. The City

has adopted or has tolerated an implicit policy or custom permitting discrimination and retaliation

by its supervisors and the use or issue of the internal disciplinary process to retaliate against,

harass and chill the exercise of religion and free speech by officers, Muslin, minority and male

officers who protest illegal police department actions.

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28. At all times relevant hereto there existed an employer-employee relationship between

Plaintiff and the Defendant City. Additionally, the acts of the co defendants, as described in this

complaint, occurred within 2 years of the date the complaint was filed; these acts were done

under color of state law and deprived the plaintiff of his federal rights, privileges or immunities as

secured by federal law, rule, or constitution, e.g. First and Fourteenth Amendments of the United

States Constitution and Title VII, 42 U.S.C. §2000(e). Furthermore, all acts by the Defendants

were done beyond the bounds that society is willing to tolerate, they were extreme and

outrageous, and would shock the conscience of an ordinary person. The acts were intentionally

and deliberately, and/or done recklessly, maliciously, and/or in gross negligence; the defendants

conduct were donewithknowledgetheconductwoulddeprivePlaintiff’srights and was contrary

to clearly established law. The Defendants acts were done as a policy, custom and practice of the

City of Philadelphia and inrecklessdisregardfortheplaintiff’srights,and/orindeliberate

indifference to his rights, as such rights are secured by the laws of the United States and

Commonwealth of Pennsylvania.

29. At all times relevant hereto all acts against the plaintiff were done under an illegal

policy, practice, custom and agreement, for the design, with the intent and for the purpose to

harm the plaintiff, deprive him and officers under color of state law of civil rights, the right to

property, liberty, equal protection of law, reputation, and due process, as secured under the First,

and Fourteenth Amendments of the United States Constitution, and Article I sections: 1,

(property, liberty, equal rights, reputation, happiness) 3, (Religion) 26 (discriminate in exercise of

civil right) of the Pennsylvania Constitution.

30. AtalltimesrelevanttoPlaintiff’scausesofaction,theDefendants acted with actual or

constructive knowledge or notice of the illegality as of their acts, which have been fully described

above, thePlaintiff’sFirstAmendmentprotectedactivitiesandconstitutionalrights,and that their

actions were contrary to established law.

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31. The Defendants acted with specific intent to deny and/or chill constitutional rights, such

as but not limited to freedom to practice the Muslim religion, speech, and equal protection of the

law.

COUNT I

John Mulholland v. City of Philadelphia

1983 Monell Action

32. Plaintiff repeats all preceding paragraphs hereto and as though repeated verbatim.

33. Plaintiff believes and therefore avers that the City of Philadelphia has a policy, custom

and practice to treat unequally employees because of their gender, religion and First Amendment

activities, and to retaliate against employees who engage in First Amendment activities, such as

speech and religion. Plaintiff further avers that the City as a policy practice or custom acquiesces

to its supervisory rank employee’smisconduct,andtheuseormisuseofdisciplineorthe

disciplinary process or rules, to chill constitutional rights and retaliate against those employees

who exercise the First Amendment rights to free speech and religion.

34. Plaintiff contends also that the City and its Police Department as a policy, practice

and/or custom disciplines and issues or withholds assignments and/or transfers in order to cause

a chilling of free speech constitutional rights or retaliate for reporting to investigative agencies

illegal conduct. Plaintiff contends further that the substantial motivating reason for the adverse

employment and disparate treatment by the defendants, as is more fully describe below. Is

becauseofthePlaintiff’sFirst amendment activities, such as religious practices and/or free

speech, e.g. reporting to supervisors and the EEOC illegal employment and discriminatory

practices of the City, Mulvey and Dwyer, or because of his gender or sex.

35. Plaintiff contends also that the City and its Police Department has adopted a de facto

policy of permitting supervisors to use and misuse the internal disciplinary system, assignment

and transfer system, and/or daily duty assignment process to chill free speech and religious

practices, and to retaliate against the employees, including the plaintiff, who are whistle blowing

officers and persons or employees who oppose illegal employment practices.

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36. Plaintiff believes and therefore avers City of Philadelphia has a policy and practice of

condoning, overlooking, and acquiescing to the practices as heretofore alleged and done by

Defendants Mulvey and Dwyer, and under said policy the City does not take prompt and

appropriate action to stop unequal or discriminatory and retaliatory treatment by its supervising

staff, such as the discriminatory and retaliatory treatment by Inspector Mulvey.

37. Plaintiff believes and therefore avers that the City of Philadelphia has a policy and

practice of failing to train and supervise its law enforcement personnel, including supervisors, and

that the City permits condones and acquiesces to discrimination and retaliation against officers

who oppose discrimination in and out of the work place, oppose misconduct by police officers of

the Philadelphia Police Department, and practice non-Christian religions.

38. The Plaintiff believes and therefore avers the Defendant City has a policy to chill and

retaliate against employees who engage in First Amendment activities, such as to speech and for

reporting misconduct and opposing illegal employment practices and/or for practicing well

recognized religions, such as the muslin faith.

39. DefendantMulvey’sactsasdescribedthroughout this complaint were acquiesced to by

Commissioner Sylvester Johnson of the City of Philadelphia Police Department and/or by John

Street, Mayor for the City, and the result of the acquiescence created a policy for the City to

permit and condone discrimination in the work place, to fail to take prompt and appropriate action

to stop discrimination, and to allow retaliation by employees, and to allow the existence of

improper or inadequate supervision and training to end discrimination and retaliation but to allow

discrimination and retaliation against employees who engaged in protected free speech and

religious activities.

40. The City has a policy to retaliate and chill rights as other employees who have engaged

in protected free speech activity, as practiced by the Plaintiff, have under the policy been

retaliated against; such employees include, John Devore who was illegally fired from his police

officer position after reporting corruption by a police office. Mr. DeVore in a ten (10) day jury trial

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against the City of Philadelphia that ended in March 2004 and was held before the Honorable

Jacob Hart (Easter District United States District Court for Pennsylvania) proved the policy

existed; he was awarded by the jury a six figure damage amount. Further, ) Captain Dooly of the

Philadelphia Police Department in a free speech First Amendment retaliation trial before the

Honorable Lowell Reed, (Easter District United States District Court for Pennsylvania established

the policy by the City of Philadelphia to retaliate against employees for First Amendment activities

and Captain Dooly recovered a six figure damage award for being retaliated against for First

Amendment Free Speech activities.

41. The policy of the City, as aforedescribed, and the acts of the Defendants, as described

in this complaint, caused injury to the Plaintiff and are the direct or proximate cause for the

Plaintiff’sinjuries.

COUNT II

Title 42 Sec. 1983 - Civil Rights Religion Speech and Gender

42. Plaintiff repeats all preceding paragraphs hereto as though stated verbatim.

43. On or about March 2004 and continuing to date, Defendants Mulvey and Dwyer acted

under color of state law to deprive the plaintiff of his rights, privileges or immunities as secured by

the Constitution, Laws or Regulations of the United States; such as, but not limited to, the First

Amendment right to practice religion and exercises free speech, and the Fourteenth Amendment

rights to substantive and procedural due process and equal protection of law.

44. Plaintiff at all times relevant hereto was a person as intended by 42 U.S.C. 1983 and as

a person and citizen of the United States he enjoyed the right under the First Amendment to

practice the Muslim faith, speak out against discrimination, file a charge of discrimination with the

EEOC, and not be retaliated for the First Amendment activities, and the right under the

Fourteenth Amendment to be treated equally as others similarly situated as the Plaintiff, and not

to be treated differently because of his gender or religious practices, and the right to be free for a

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deprivation of property or liberty interest without first being provided lawful and proper procedural

and substantive due process of law.

45. Plaintiff is a member of a protected class, to wit, a person engaging in a fundamental

rights, such religion and free speech in reporting illegal conduct by police and employees of the

City of Philadelphia.

46. Plaintiff contends that in 2004 while engaged in protected First Amendment activities he

suffered a deprivation of the right to Free Speech and religious participation and beliefs, and that

because he engaged in free speech activities of reporting illegal discrimination in employment to

the United States Equal Employment Opportunity Commission and for is exercised of his Muslim

faith, which is a well recognized religion, he was retaliated against by the defendants for the

protected activities and treated differently in the terms and conditions of his employment.

47. Plaintiff contends that as a result of his free speech and religious activity he was

discriminated against by the Defendant City of Philadelphia and Mulvey, and retaliated against by

same and Defendant Dwyer, for reporting to the EEOC and Police Department perceived

discriminatory acts. Additionally, Defendants Mulvey and Dwyer conspired with one another to

deprive plaintiff of his civil rights and to retaliate against him for his free speech activity.

Defendants Mulvey and Dwyer aided and abetted the City in its policy, practice and custom to

treat plaintiff differently in the terms and conditions of employment and to retaliate for First

Amendment activity.

48. Plaintiff contends that his free speech and religious activity was the substantial or

motivating reason for the defendants conduct as described in the Amended complaint, and that

Defendants intended to discriminate and retaliate against the Plaintiff because of his religion and

free speech activity.

49. Plaintiff contends that his religious activity,e.g.wearingaHatta”,and opposing illegal

employment practices, filing a discrimination charge with the EEOC and PAHRC, and reporting

perceived discrimination to superiors of the City Police Department, are protected activities under

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the First Amendment of the United States Constitution and Laws of the United States and the

Laws and Constitution of the Commonwealth of Pennsylvania; specifically, Title VII of 42 U.S.C.

2000(e); Article I section 3 of the Pennsylvania Constitution, and 43 C.S. Section 951 et. seq., of

the Pennsylvania Human Relations Act. (all relating to religious and gender or sex discrimination).

50. Plaintiff contends he was deprived of his constitutional rights, privileges and immunities,

including the First Amendment constitutional rights, because of his religion and practicing his

Muslim faith, and for his speech, e.g. opposing and reporting illegal employment practices to the

Equal Employment Opportunity Commission.

51. Plaintiff contends the acts of the defendants as described were done under color of law

andtoretaliateforthePlaintiff’sFirstAmendmentactivity;andthathe,thePlaintiff,wassubjected

to adverse employment action by the City of Philadelphia, as is more fully described below, which

action violates Title VII and Section §955 of PAHRC, and also offends the First Amendment of the

United States Constitution and Article I Section 3 of the Pennsylvania Constitution.

52. Plaintiff further contends that he was subjected to unequal and disparate treatment in

the terms and conditions of his employment because of his sex, speech, and religious practices.

Further, Plaintiff contends that because of his sex and protected activities, e.g. speech and

religious practices, he was treated differently to how others similarly situated were treated, treated

different in the terms and conditions of employment, and was subjected to disparate treatment

because of his religion, gender, and free speech activities.

53. Plaintiff contends that as a result of the defendants’acts,retaliations,andunequal

treatment he sustained damages that included emotional distress, loss of wages, employment

benefits, employment opportunities, humiliation, and embarrassment.

54. Plaintiff was denied the aforementioned rights under color of state law by the

Defendants as follows: (a) Defendant Mulvey with the aid and agreement of Defendant Dwyer

treated Plaintiff unequally in the terms and conditions of employment as females and non Muslins

are treated; in that Mulvey, Dwyer and the City allow females and non-Muslins to bring to work

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and use laptops during work hours, and they allow females and non-Muslims to study for

promotional exams at work and during work hours, and they allow such to practice their faith on

and off duty without fear of being disciplined, transferred, or monitored though a digital security

system. Further, Non Muslim employees were not retaliated against or treated differently as just

described for wearing religious wear or opposing discrimination by filing an Equal Employment

Opportunity Commission and/or Pennsylvania Human Relations charge of discrimination.

However, Plaintiff believes and therefore avers that Muslims such as he are not permitted to do

these acts on duty, and he was not allowed to wear religious wear, such as a Hatta, while of duty.

55. Further, Plaintiff believes and therefore avers that females and those of the Christian

and Jewish faith are treated more favorably by the Defendants than Muslims, in that non Muslims

and female are permitted to display and wearing religious wear while on and off duty; however,

Plaintiff a Muslim is not. In that, Plaintiff a Muslim was told by Defendant Mulvey that he was not

to wearhis“Hatta”offduty; yet, Mulvey has not told Christians they may not wear a cross of their

faith on or off duty, or that they would not have an ash mark on the forehead for ash Wednesday

on and off duty. Additionally, Jewish female officers are not bared from wearing a skull cap, while

off duty, or a Jewish cross while on or off duty. However, Plaintiff was told by Defendant Mulvey

to not wear his muslin clothing or“hatta”(which is a hat worn by Muslims) while off duty.

56. DefendantMulvey’sordertoPlaintiffthat he was not to wear a hatta while off deprives

and deprived the Plaintiff of his federally protected fundamental right to practice religion, equal

protection at law and substantive due process, for which there is no legitimate or any important

governmental interest for the deprivation or order and requiring Plaintiff to not wear religious wear

while off duty.

57. DefendantMulvey’sorderisarbitraryandcapriciousastoshocktotheconscious.

58. Defendant Mulvey was at all times on notice that her conduct was illegal and would chill

and/or deprive free speech and religious rights, because such conduct was deemed by clearly

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established law to be illegal and a violation of the First and Fourteenth Amendments of the united

States Constitution and laws of the United States and Commonwealth of Pennsylvania.

59. As a direct and proximate cause of the aforesaid deprivation and conduct under color of

state law the plaintiff was denied his First Amendment right to practice religion and free speech

right to file a charge of discrimination with the EEOC and PAHRC to oppose illegal employment

discrimination, and of his Fourteenth Amendment right to equal treatment and substantive due

process of law.

60. As a direct and proximate cause of the aforesaid deprivation and conduct sustained

emotional distress, humiliation, embarrassment, pain and suffering, wage loss, and employment

opportunities.

61. The Defendants acts and omissions as aforedescribed were done intentionally and/or in

violation of clearly established law; were for the purpose and intent to retaliate for Plaintiff

engaging in First Amendment activities, such as practicing the Muslim faith and reporting

discrimination to the EEOC and PAHRC, and in deliberate indifference to or reckless disregard

for to the Plaintiff rights.

62. The substantial and/or motivating reason for Defendants Mulvey, City and Dwyer’sacts

was the Plaintiff’smembership and First Amendment activities. As such, the Plaintiff is entitled to

such relief as is provided at law and equity under the 1964 Civil Right act, its amendments such

as the 1991 amendment, and 42 U.S.C. §1983 et. seq., and other laws of the United States and

Commonwealth of Pennsylvania relating to a deprivation of the rights, privileges and immunities

as secured by federal law, rule and regulation.

COUNT III

42 U.S.C. 1983

(conspiracy)

63. Plaintiff incorporates all preceding paragraphs hereto as though repeated verbatim.

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64. Defendants Mulvey and Dwyer collectively, by agreement, and/or for a common goal,

took overt acts in furtherance of the agreement by putting into motion their plan to deprive plaintiff

of and retaliate for his free speech rights to practice the Muslim faith and to report illegal

employment practices, such as discrimination based on religion and gender.

65. Defendants Mulvey had Defendant Dwyer in furtherance of their agreement approach

Plaintiff’switnessesandthreatened then with discipline, e.g. transfers, if they testified for Plaintiff

and against Mulvey.

66. Mulvey had actual or apparent authority as an inspector and supervisor at the Forensic

Law Unit to issue discipline and transfer person working under her command and at the Forensic

lab Unit, which is where the Plaintiff and his witness worked.

67. Mulvey and Dwyer had actual knowledge of Plaintiff’sfreespeechactivities,e.g.filinga

charge of discrimination with the EEOC and PAHRC, and having this actual knowledge they

agreed that one or both would interfere with the EEOC investigation, or justice, by approaching

and coercing with threats the Plaintiff’switnessesto the allegation of discrimination by Defendant

Mulvey. In that Defendant Mulvey and Dwyer threatenedPlaintiff’switnesswithtransferstoa

District if the witnesses testified for Plaintiff about Mulvey’sorder that Plaintiff was not wear the

Hatta.

68. Mulvey with the aid and agreement of Defendant Dwyer, or others who are not named

as defendants, did one or more of the following in furtherance of and to facilitate the conspiracy to

deprive Plaintiff’scivilrights and retaliate for the exercise of the aforementioned First amendment

right: they, (a) threatened witness with transfers if they testified against Mulvey; (b) used the

building’snewdigitalsecuritysurveillancesystem to monitor and intimidate the witnesses and (c)

they burned disksoftheimagesofPlaintiff’switnesswhile working as further intimidation or

support a pretextual basis to discipline the witnesses, when the security system under Police

Department / City policy is not to be used for that purpose.

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69. As a direct and proximate result of the illegal conspiracy Plaintiff was deprived of rights,

privileges or immunities as secured under the United States Constitution, Laws and/or

Regulations; to wit, speech, property, liberty, equal treatment under the law, and due process as

secured by the First, Fourth and Fourteenth amendments.

70. The Defendants at all time were acting in concert with one another and were motivated

by an animus for the Plaintiff, which animus and motivation continues to date.

COUNT IV

42 U.S.C. 2000 (e)

71. Plaintiff incorporates all preceding paragraphs hereto as though repeated verbatim.

72. Plaintiff is a member of a protected class, e.g. he is a male and person who practices

the Muslim faith and he is and remains qualified for the position he holds; to wit, Police officer and

Sergeant.

73. Plaintiff was denied equal employment opportunities and subjected to different and

adverse employment action in the terms and conditions of his employment by the employer, e.g.

The City of Philadelphia, because of his religious activities and gender or membership in the

protected class.

74. Because of Plaintiffs membership in a protected class or protected activities, Plaintiff

was denied the same benefits as female officer and non-Muslim officers.

75. Plaintiff complained to his superior of the discriminatory conduct, and the City failed to

take prompt and adequate remedial action to stop the retaliatory action; thus, the city adopting

the conduct as a policy of the employer to engage in illegal employment practice of discriminating

against employees in the terms and conditions of employment because of gender and religion.

76. As a result of the Defendant city of Philadelphia failure to take prompt and appropriate

action to end the illegal employment practice, as proscribed by Title VII, the Plaintiff is entitled to

all relief afforded by title VII.

Case 2:05-cv-05233-PD Document 8 Filed 12/06/05 Page 17 of 19
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COUNT V

Pennsylvania Human Relations Act

77. Plaintiff incorporates all preceding paragraphs hereto as though repeated verbatim.

78. Plaintiff complained to his superior of the discriminatory conduct by Mulvey and Dwyer

and the City failed to take prompt and adequate remedial action to stop the retaliatory action, thus

the City employer adopted the conduct as a policy of the employer in the terms and conditions of

employment for its employers, which included the plaintiff.

79. The acts of the defendants, as fully described above, were done because of Plaintiff

protected activities or gender.

80. Defendants Mulvey andDwyeraidedandabettedtheemployer’sillegalemployment

practice to discriminate against employees in terms and conditions of employment because of

sex, gender and religion.

VI. PRAYER FOR RELIEF

Wherefore, the plaintiff prays the Court enter Judgment for him and against the Defendants on

all counts and hold the Defendants jointly and severely liable, and that the Court award Plaintiff all

equitable and relief to make the Plaintiff whole, including but not limited to back and front wages,

economic, statutory, compensatory, punitive and exemplary damage, reasonable attorney fees and

costs, and such other relief the court deems fitting and just.

Respectfully submitted

KRAVITZ AND PURICELLI

BY: ________________________

Brian M. Puricelli. Esquire

Dated December 5, 2005 ECF SIGNATURE MBP3198

Case 2:05-cv-05233-PD Document 8 Filed 12/06/05 Page 18 of 19
19

KRAVITZ AND PURICELLI

BY: Brian M. Puricelli. Esquire

PA. Attorney ID No. 61933

691 Washington Crossing Road

Newtown, Pa. 18940

(215) 504-8115

____________________________________________________________________________________

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN MULHOLLAND : NO. 05-5233

Plaintiff :

vs :

:

CITY OF PHILADELPHIA, AND :

ALICE MULVEY AND KEVIN DWYER :

Defendants :

CERTIFICATE OF SERVICE

I, Brian M. Puricelli, Esquire certify that a copy of Plaintiff’sFirstAmendedComplaint was

served on Patricia Siemiontkowski, Esquire, Counsel for the Defendants via ECF and personally

on December 6, 2005 at the City Law Department, 1515 Arch Street, Philadelphia PA

KRAVITZ AND PURICELLI

BY:

ECF SIGNATURE BMP3198

Brian M. Puricelli, Esquire

Counsel for Defendant/Petitioner

Case 2:05-cv-05233-PD Document 8 Filed 12/06/05 Page 19 of 19